Episodes
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We are here early this week - for Election Day! And we bring you a panel that looks at elections, and Presidents, from American history, putting this year’s choice in perspective. Gordon Wood, the greatest historian of the early Republic; Steven Smith, an expert on political institutions, on The Federalist, on Lincoln; Paul Grimstad, authority on great American thinkers and writers like Emerson and Thoreau; and of course, Professor Amar, weigh in on all sorts of questions and aspects of this year’s crucial choice. And we have an audience for this live-to-tape podcast - an EverScholar audience - who asks questions on the mind of many. Here are perspectives you won’t gain anywhere else. CLE credit is available for lawyers and judges from podcast.njsba.com.
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It's 200 episodes for Amarica's Constitution, and we mark the occasion by bringing you a key expert for an in-depth exploration of a breaking development. Ruth Marcus, long-time Washington Post columnist, editor, Pulitzer Prize nominee, and insider, joins us to explore the inexplicable: the last-minute decision by the Post and its owner, billionaire Jeff Bezos, to withhold what would have been an endorsement for Vice President Harris for election to the Presidency. What goes on in an editorial board? What is the role of the owner? What are the alternatives for editors, columnists, and reporters? Was Bezos intimidated by Trump? What does all this mean for the nation? We have the perfect means to explore this shocker: a frank and unhurried inquiry with our friend, Ruth Marcus. What a way to mark our bicentennial. CLE credit is available from podcast.njsba.com.
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Missing episodes?
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We are approaching our 200th episode and completing our 4th year of “Amarica’s Constitution,” and it seems appropriate to take stock. By coincidence, the Yale Law School is celebrating its own anniversary, and these things come together as Akhil is part of a big event and presents a “big idea” that sounds like a strange saying: “the Constitution is a thing.” We explain, elaborate, and celebrate a little bit. We look back, and we look ahead to some real excitement over the next few months (besides the election, that is). CLE credit is available for lawyers and judges from podcast.njsba.com.
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In Trump v. United States, we have said that the Court went far astray from the Constitution and from its duty, endangering the nation in the short and long terms. Many have shared this opinion and these fears, and reaction has been profound. In the New York Times, two law professors take up the pen and offer a number of suggestions that purport to restrain and direct the Court towards Congress’ will, assuming that Congress agrees with the authors, that is. Senator Schumer in a recent bill took a similar though not as extreme direction. We identify the flaws with these approaches, and offer an alternative that would be constitutional, and has an actual chance of being effective, based upon history and constitutional structure. We also take up some fascinating readers’ questions, including one which might matter for some overseas voters. CLE credit is available for lawyers and judges from podcast.njsba.com.
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The Supreme Court has, through its recent follies, managed to bring the status of ex-presidents into the spotlight. How appropriate, then, that perhaps America’s greatest ex-president reaches a milestone this past week: Happy Birthday, President Carter. The ex-presidents, it turns out, have told a myriad of stories through the centuries. America largely avoided succession crises until recently, but as far back as Alexander Hamilton, the potential for mischief was seen and feared. Professor Amar, one of the few who have studied ex-presidents in any detail, treats us to a master class in this unusual but suddenly vital group of Americans. CLE credit is available from podcast.njsba.com.
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Donald Trump continues to spout inflammatory rhetoric; he has compounded his talk of being “a dictator on day one” with an intention to conduct a “purge” with extreme violence allowed, again allegedly for one day. All this makes one expect that he will not back off his first-term tendency to take an authoritarian posture regarding the Justice Department. The New York Times ran an article presenting new and thorough look at Trump and the Dept in his prior term, and we analyze. We also take more of your election-related constitutional questions. CLE credit is available from podcast.njsba.com.
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Nebraska is no flyover state; its unusual electoral vote structure puts Omaha’s one electoral vote up for grabs - both as a contest for votes, and a legislative battle to possibly restructure Nebraska’s election law. We tell an originalist story form the early Republic that surprisingly echoes some of the issues in today’s situation. Meanwhile, other types of blue dots, and how the right to travel and to reside where one wishes can play a role in the election. We also try to proactively refute the inevitable accusations to come from predictable sources on these matters. CLE credit is available for lawyers and judges from podcast.njsba.com.
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The New York Times looks at the Constitution as an allegedly anti-democratic, divisive, secession-promoting document. They bring authority to bolster their case in the person of the Dean of the UC Berkeley School of Law, Erwin Chemerinsky. We take a close look at this article and the arguments it employs. This takes us to the center of the Constitution’s purposes, of course to questions of originalism, as well as an analysis of what sort of democracy the Constitution protects, and what sort it might protect against. CLE credit is available for lawyers and judges from podcast.njsba.com.
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It’s time for your questions, and having a great audience means there are so many fascinating directions to go. A Canadian listener tells of how a non-originalist purpose-oriented approach to constitutional law works for them - why not in the US? We go in a different direction when we consider the wisdom of increasing the size of the House of Representatives. Still another asks about whether the presidential immunity decision has undermined some fundamental aspects of criminal law, not to mention one of the Court’s greatest moments - the Nixon tapes case. Keep those questions coming! CLE credit is available for lawyers and judges from podcast.njsba.com.
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RFK Jr. has withdrawn from the race and endorsed Trump. This meeting of an estranged Kennedy and an indicted Trump, is laced not only with strangeness but also constitutional themes, as we explore. Meanwhile, backlash after the Trump immunity opinion continues, and Senate Majority Leader Schumer has introduced legislation in response. The great Washington Post columnist, Ruth Marcus, returns to our podcast to comment on this legislation and the many serious implications it would have if adopted, as well as the issues it raises for consideration even if it fails, as it seems likely to do. CLE credit is available from podcast.njsba.com
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The United States Court of Appeals for the Fifth Circuit has been overruled by the Supreme Court more often, and more forcefully, than any other circuit during the past term. Why? What are the consequences for the judges of the Fifth Circuit, if any? Is this a problem for our judicial system, and if so, are there any remedies available? Listeners to Amarica’s Constitution will not be surprised to learn that Professor Amar has some ideas on this topic. He also grounds the problems and the solutions in history and structure, and lest one think this is a partisan attack on a conservative court, he tells of his past criticism of the then-ultra-liberal ninth circuit for analogous behavior.
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Court reform is in the air. Having presented the problems with the 18 year term proposals before the House and Senate, Professor Amar’s plan deserves its own scrutiny. We therefore present the plan in detail, explaining the problems that it attempts to solve, the principles it attempts to uphold, and the criticisms it might attract. Since it is a proposal and not yet a statute, it is subject to modification and hopefully improvement, so we invite the audience to chime in with your own critiques and suggestions. Let’s keep the conversation going. CLE credit is available from podcast.njsba.com.
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The 2021 Biden Commission on the Court has now led - with a big “assistance” from the Court itself - to President Biden’s own plan for Court reform. It is sketchy in many ways, but is entirely consistent with Professor Amar’s long-held views on 18 year active terms for Supreme Court justices, though the President’s proposal lacks the detail of that plan. This is unsurprising in a way since Prof. Amar testified before that Commission. There are other related plans in proposed statutes that lie in committees of the House and Senate. We consider the features of all, the flaws we have diagnosed, and we also have some commentary on some other aspects of the President’s proposals, including a possible constitutional amendment. Lots to consider this week! CLE credit is available for judges and lawyers from podcast.njsba.com.
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President Biden has stepped aside as a candidate, and as promised, we look at what’s next from a variety of points of view. Some Republicans, notably the Speaker, are claiming that the President should actually resign or step back under the 25th amendment. What would this mean? Meanwhile, we have a lot more in this early episode, including a reader’s question on Barack Obama; another on Edmund Burke; a preview of an amazing EverScholar program; a preview of Biden’s Supreme Court proposed reform; and more. CLE credit is available from podcast.njsba.com.
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Resignations are in the air, and our discussion - recorded before President Biden’s actions - offers surprising resonances in its wake. Meanwhile, our guest, Professor Vik Amar, provides not just a condemnation of Judge Cannon’s recent dismissal of the Trump documents case, but a refutation of the arguments she made, and a recitation of those crucial points, cases, and reasonings which she ignored. Plus we finally have the details on the EverScholar announcements we have been teasing; 18 year terms are back in the news; and more. We will be back, possibly early this week depending on developments, with a special episode on President Biden’s withdrawal from the presidential race. CLE credit is available from podcast.njsba.com.
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President Biden is hearing calls from many quarters to step down as a candidate. Donald Trump is shot. Questions of presidential succession and/or resignation abound. While it may seem these are unique and strange situations which the American republic has never faced, in fact, resignation has been a key American issue for centuries. Episodes well-known, and others rarely taught, are reviewed on our podcast this week, providing context and counsel for our listeners, and hopefully for the candidates themselves. The path to Mount Rushmore may take a turn away from the Oval Office, it turns out. CLE credit is available for lawyers and judges from podcast.njsba.com.
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The Court’s opinion in the presidential immunity case Trump v. US, has sunk in. On reflection it is even worse that on first impression, and that is saying something. But just to condemn the opinion is not enough. Professor Amar distills the Court’s argument to its essence and explains why it completely collapses under any kind of rigorous scrutiny. Its abandonment of originalism and of the constitution’s own terms is laid bare. How could the Court go so astray? We also take a stab at this, and speculate on various forms of rot that it may reveal. CLE credit is available from visiting podcast.njsba.com after listening.
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In an exhausting week, the Court released a number of long-awaited cases, and we had a consequential presidential debate. We look at several cases that many believe have profound implications for the administrative state; the opinions in SEC v. Jarkesy, and Loper Bright v. Raimondo clearly have the effect of increasing the role of courts and juries, among other things. We look at the opinions, the underlying themes, and the impact. Meanwhile, following the debate, questions of presidential succession of several types, and of the vice president, are everywhere; these happen to be areas of Prof. Amar’s expertise, and so we address them. NOTE: The Presidential Immunity case, Trump v. US, came down after we taped this episode; we have some early but important resources for you on this as well. CLE credit is available from podcast.njsba.com.
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As the end of the term approaches the deluge of major cases has begun. Two big cases - the eagerly awaited sequel to the Bruen case - Rahimi - features an orgy of originalist theorizing and opining. Meanwhile, in Moore v. US - a case where Professor Amar and his team had an amicus brief - the tax power was upheld, but reading the opinion one might wonder if the same Court had sat for this case. We take a look at the opinions and give our own take on these impactful cases, even as we brace ourselves for many more in the week or so to come.
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Akhil is in Boston this week and reminds us that the history of the American Revolution, where Boston is so pivotal, contains myriad lessons that provide insight into the student protests of today - so we look at this subject in some detail. Meanwhile, the Court issued opinions in two prominent cases, and Akhil seems to be reluctant to take “yes” for an answer in one of them, so we take another look at issues of standing. Does Akhil convince you of the correctness of his approach? Finally, the bump stock gun case, a statutory interpretation case, is lamented by many; we take a quick look at why it doesn’t have to be the last word on this matter. CLE credit is available after listening by visiting podcast.njsba.com.
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